Cyber Defamation in Korea

If a victim sends an email on the fact of damages due to sexual harassment to her coworkers in order to prevent additional cases in the company, would it be defamation against the harasser?

First, let’s check the elements of cyber defamation. The applicable article of Act On Promotion Of Information And Communications Network Utilization And Information Protection is as follows;

Article 70 (Penalty Provisions)

1. A person who commits defamation of another person by disclosing a fact to the public through an information and communications network purposely to disparage the reputation of such person, shall be punished by imprisonment with labor for up to three years or by a fine not exceeding 30 million won. <Amended on May 28, 2014>
2. A person who commits defamation of another person by disclosing a false fact to the public through an information and communications network purposely to disparage the reputation of such person, shall be punished by imprisonment with labor for up to seven years, by suspension of qualification for up to 10 years, or by a fine not exceeding 50 million won.
3. The prosecution may not prosecute a person who committed a crime under paragraph (1) or (2) against the victim’s will explicitly manifested.

[This Article Wholly Amended on Jun. 13, 2008]

First of all, the victim, a person mentioned in the sentence, should be identifiable. If nobody can guess who the person mentioned is, it can’t be defamation.

Second, the sentence or paragraph should include “a fact”. The fact should be specific and provable or falsifiable, which makes it different from an opinion.

Third, the mentioned fact in the sentence or the paragraph should have a chance of being widespread. If the fact was spoken between the two persons and it has very little chance of being disclosed to the third party, it would not constitute defamation.

Fourth, the purpose of speaking the facts should be to disparage the reputation of the victim. Therefore, if one speaks the facts in the interest of the public interest, it can’t be defamation.        

Then, how about the case mentioned in the first paragraph? To give more details, a woman was sexually harassed by the HR team manager and when she left the company, she sent an email about the fact of damages to about 80 employees of the company mentioning that she hoped that similar incidents would not occur in the company and should they occur, the victim would report it. She was charged for defamation and found guilty at the first and second trial but the Supreme Court concluded that her purpose of mentioning the fact of damages was for the public good of the company and she should not be considered to have intended to ruin the reputation of the harasser. Therefore, the Supreme Court reversed the original judgment and sent back the case to the second trial.